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2003 DIGILAW 974 (PAT)

Dharmendra Sah v. State Of Bihar

2003-09-05

NAGENDRA RAI, R.S.GARG

body2003
Judgment 1. This appeal is directed against the order dated 4.3.2003 passed by the learned Single Judge dismissing the writ application filed by appellants for a direction to the respondent-State and its officers to bring selection process to its logical end by issuing letter of appointment to the appellants on the post of Jail Warder in pursuance of advertisement dated 13.7.200 (sic) (Annexure 6 to the writ petition), which was issued for filling up 132 posts of Jail Warder, out of which 60 posts were reserved for the members of the Home Guard as well as for quashing the decision taken by the State Government dated 1.6.2002 (Annexure 12 to the writ petition), wherein it was decided to cancel the entire selection process in terms of the aforesaid advertisement and to take steps for fresh appointment by revising the criteria for appointment to the post of Jail Warder from 7th Class to Matriculation in accordance with the recommendation of the Fitment Committee. 2. The learned Single Judge has dismissed the writ application on the ground that the decision taken by the State Government not to make appointment on the basis of the earlier panel prepared in terms of the advertisement, with a view to make a fresh selection in terms of the proposed criteria is neither, arbitrary nor in breach of requirement of Article 14 of the Constitution of India. 3. As we agree with the view taken by the learned Single Judge, it is not necessary to state the facts in detail. Suffice it to say that the advertisement was issued for filling up certain posts of Jail Warder and in terms of the provisions of the Jail Manual, minimum qualification prescribed was 7th Class. 132 posts were advertised, out of which 60 posts were reserved for Home Guard and the appellants being Home Guard applied under the aforesaid category. The selection process was made in terms of the Jail Manual and a panel was prepared. However, the appointment couid not be made. In the meantime, the State Government took a decision on 1.6.2002 (Annexure 12) that the criteria of appointment should be revised in terms of the recommendation of the Fitment Committee. The selection process was made in terms of the Jail Manual and a panel was prepared. However, the appointment couid not be made. In the meantime, the State Government took a decision on 1.6.2002 (Annexure 12) that the criteria of appointment should be revised in terms of the recommendation of the Fitment Committee. The Fitment Committee has recommended that the minimum qualification for appointment to the post of constable and the Jail Warder should be Matriculate and, accordingly, the aforesaid criteria have to be adopted and, accordingly, no appointment should be made on the basis of the panel already prepared and fresh appointment will be made after the revision of the criteria. 4. Learned counsel appearing for the appellants submitted that admittedly the vacancies were advertised, the selection has been made in terms of the relevant rules and a panel has been prepared and, accordingly, the State should fill up the aforesaid vacancies and the decision taken by the State Government not to fill up the vacancies from the panel prepared on the basis of the earlier advertisement on the ground that the criteria have been revised, is arbitrary and impermissible in law. 5. Learned counsel for the State submitted that by inclusion of the name in the panel, a person does not get any indefeasible right to be appointed. It is always open to the appointing authority to deny the appointment on valid grounds. It is not a case where appointment has been denied to the appellants on arbitrary or irrelevant ground, on the other hand, the State Government after taking into account the report of the Fitment Committee, decided to revise the criteria and, accordingly, denied the appointment to the appellants on the basis of the earlier selection. 6. Learned counsel appearing for both the parties relied on certain judgments of the Apex Court as well as of this Court in support of their submissions. Reference will be made to those judgments at the appropriate places. 7. So far as the right of appointment of the person having been empanelled is concerned, the law is settled by the Constitution Bench of the Apex Court in the case of Shankarsan Das V/s. Union of India, reported in (1991) 3 S.C.C. 47 . In paragraph 7 of the said judgment, it has been held as follows : "7. 7. So far as the right of appointment of the person having been empanelled is concerned, the law is settled by the Constitution Bench of the Apex Court in the case of Shankarsan Das V/s. Union of India, reported in (1991) 3 S.C.C. 47 . In paragraph 7 of the said judgment, it has been held as follows : "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by his Court, and we do not find any discordant note in the decisions in State of Haryana V/s. Subash Chander Marwaha, (1974) 3 S.C.C. 220 , Neelima Shangla V/s. State of Haryana, (1986) 4 S.C.C. 268 , or Jalinder Kumar V/s. State of Punjab, (1985) 4 S.C.C. 122." 8. The same view has been reiterated by the Apex Court in the case of Jai Singh Dalai V/s. State of Haryana, reported in (1993) Supp. 2 S.C.C. 600 as well as in the case of All India S.C. & S.T. Employees Association V/s. Arthur Jeen, reported in (2001) 6 S.C.C. 380 . Thus, the settled law is that the successful candidate does not acquire any indefeasible right to be appointed. The same can be legitimately denied. There is no legal obligation on the State to fill up all or any of the vacancies. However, the said list prepared of successful candidates is not a farce one; meaning thereby that the State has licence to deny the appointment in arbitrary manner. The same can be legitimately denied. There is no legal obligation on the State to fill up all or any of the vacancies. However, the said list prepared of successful candidates is not a farce one; meaning thereby that the State has licence to deny the appointment in arbitrary manner. The appointment can be denied on valid and rational ground. 9. Learned counsel for the appellant relied upon the decision of the Supreme Court in the case of Asha Kaul V/s. State of Jammu and Kashmir, reported in (1993) 2 S.C.C. 573 . In paragraph no. 8 thereof, the principle laid down in Shankaran Dass case (supra), has been reiterated and nothing new has been said. However, coming to the facts of the said case, it appears that in that case the entire panel was not approved and it was approved in part only. In that context, an observation was made by the Apex Court that there was no justification to accept only part of the list and reject the remaining on arbitrary ground. That case, in our view, does not help the case of the appellant. 10. So far as the case i.e. Munna Roy V/s. Union of India, reported in (2000) 9 S.C.C. 283 , relied upon by the learned counsel for the appellant is concerned, in the said case, the law, as settled by the Constitution Bench in the case of Shankarsan Das (supra) has been retierated. 11. So far as the legal position is concerned, there is no doubt about it. The Government cannot reject a list only on arbitrary ground. The question as to whether in particular case, the State has acted reasonably or arbitrarily has to be adjudged after looking to the facts of that particular case. So far as the present case is concerned, the decision not to appoint from the list prepared in terms of the earlier advertisement is based on only one ground i.e. the proposed revision of the criteria for appointment in terms of the report of the Fitment Committee. The said decision, in our view, cannot be said to be arbitrary or irrational. 12. The said decision, in our view, cannot be said to be arbitrary or irrational. 12. The Apex Court in the case of Jai Singh Dalai (supra) held that even if the selection process has reached the advance stage, it is always open to the State Government at the subsequent stage not to fill up the post and take recourse to the fresh selection on revised criteria. The said case fully covers the present case. 13. Thus, the learned Single Judge has rightly dismissed the writ application filed by the appellant. However, the Government cannot postpone the process of selection for indefinite period on the ground that the criteria are to be revised. Once the decision has been taken to revise the criteria, the Government should decide the matter and revise the criteria within a period of four months and, thereafter, to take steps for filling up the posts of Jail Warders. 14. So far as the appellants are concerned, if during the pendency of the case, they have become over-age and a fresh advertisement is made, in that case, their cases, provided otherwise fit, should be considered and the same should not be rejected on the ground of being over-age. 15. With the aforesaid observations/directions, this appeal is dismissed.